FEATURES

The International Criminal Court in Relation to Non-Party States

A discussion of the application of the Rome Statute of the International Criminal Court to non-party states.

Introduction

The Singapore Law Gazette's March 2008 issue featured the International Criminal Court ('ICC' or 'the Court'). The article, entitled 'Ten Years after the Rome Statute, How is the International Criminal Court Doing?', provided excellent general information on the ICC. Among other things, it looked at the situations and cases which are currently before the Court for investigation and hearing. This article, in contrast, intends to examine the Rome Statute ('Rome Statute') of the ICC vis-à-vis non-party states.

The Rome Statute and Its Applicability to Non-Party States

The Rome Statute entered into force in April 2002. In July of the same year, the ICC became operational as the first permanent international court that could hold perpetrators of egregious international crimes individually responsible. As set out in the Preamble of the Rome Statute, one of the ICC's objectives is to put an end to immunity for perpetrators and likewise serve as a deterrent to potential criminals. The Court's subject-matter jurisdiction is limited to serious international crimes, namely genocide, war crimes, crimes against humanity and aggression.¹ As of 18 July 2008, the Rome Statute had 108 member-states.

Although the ICC is regarded as one of the most significant international institutions established since the United Nations in 1945,² many states remained unconvinced and declined ratifying the Rome Statute. States were concerned that ratifying the Rome Statute would entail curtailing their sovereignty. The United States, for example, reasoned that ratification would expose its citizens, especially its military personnel deployed outside its territory, to potential prosecution in a foreign international court.

Being a non-party state, however, does not imply absolute immunity from the Court's jurisdictional reach. The Rome Statute provided a mechanism where a non-party state may consent to ICC intervention on an ad hoc basis.³ With the existence of consent, the problem of the compromising of state sovereignty would not arise. However, the Rome Statute also allows for certain cases in which the ICC's authority would override a non-party state's jurisdiction, even without that state's consent. The Statute empowers the United Nations Security Council ('UNSC') to refer to the ICC certain crimes, even if those have occurred in the territory of a non-party state. If the Court's other admissibility and jurisdictional requirements are met, it may proceed to prosecute despite the alleged crime happening in the territory of a non-party state.

The principle of complementarity

The Court's jurisdiction is founded on the principle of complementarity, which maintains that its jurisdiction is triggered if a domestic court has remained inactive or is found unable or unwilling to prosecute a crime that occurred within the latter's jurisdiction.⁴ Hence, the ICC's fiat is not to supplant national courts but rather complement them.

The complementarity principle was intended to forestall the Court's impingement on the sovereignty of individual states.⁵ It recognises the primacy of national courts over the ICC to investigate and prosecute matters, even serious crimes against humanity. Accordingly, the Court would have no jurisdiction over a situation where a state were genuinely investigating or prosecuting; that is, regardless of whether or not the state were a party to the Rome Statute.

UNSC referral

A referral from the UNSC has the effect of giving the ICC jurisdiction over alleged international crimes committed in the territory of a non-party state. That authority stems from Article 13 of the Rome Statute which specifies that the UNSC may refer a situation to the ICC based on Chapter VII of the United Nations Charter, which bestows wide discretionary powers upon the Council to make any resolution as it deems fit to maintain international peace and security.

A UNSC referral to the ICC may result in the predicament of such a referral regarded by the government of the state concerned as being inconsistent with its state's interest and consequently disregarded. The first UNSC referral involving Sudan provides an ideal example. The UNSC, being satisfied that the situation in Darfur presented a threat to international peace and security, referred the situation to the Court.⁶ Following the referral, the ICC issued two warrants of arrest. Not being party to the Rome Statute, Sudan refused to recognise the jurisdiction of the ICC and accordingly did not surrender both warrantees to the Court. The Court to-date has not been able to enforce the warrants. This raises the key question of whether such jurisdiction is in essence a toothless tiger since it does not carry with it commensurate powers of enforcement.

As provided for by the Rome Statute, a UNSC referral must be carried out through a UNSC resolution. It follows that an Article 13 referral is vulnerable to political pressures like any other UNSC resolution. The five permanent members (P-5) of the UNSC, three of which are non-party states with respect to the ICC, have to approve or abstain from voting (as the United States did concerning the situation in Darfur) before a resolution will become legally binding. Each of the P-5 also has veto powers. This implies that any P-5 member has the authority to block a proposal for an Article 13 referral if it runs counter to any of its interests.

For the UNSC to put a situation under its agenda for deliberation, one can assume that the situation is of serious and alarming nature; ie, it is deemed to be a potential threat to international peace and security. Notwithstanding the significance of a UNSC resolution, UNSC referrals under Article 13 are not automatically admissible before the Court. Like those brought forth by states, UNSC referrals are not exempted from the requirements of the principle of complementarity. The ICC Prosecutor must first be satisfied that the concerned state is either unwilling or unable to proceed judicially before he decides to take on a situation.⁷ For example in the case of Darfur, if the ICC were satisfied that the domestic authorities in Sudan were genuinely pursuing the matter, the Court would have had deferred jurisdiction to the state. On a practical note, however, the UNSC before making a referral to the ICC normally would have considered the admissibility requirement, as it did in the case of Sudan.⁸

Avoiding the Court's Jurisdiction

A citizen, even of a non-party state, who has committed an international crime that falls under the Court's jurisdiction, may be subjected to prosecution by the ICC if the alleged crime transpired in the territory of a state party to the Rome Statute. States who are parties to the Rome Statute have a legal obligation to cooperate with the Court.⁹ Pursuant to a warrant of arrest by the ICC, for example, member states are required to surrender any person concerned or to assist the Court in arresting the same, where he or she is at still at large.

However, the legal obligation to cooperate and surrender suspects is subject to a limited exemption. Article 98(2) of the Rome Statute provides that the Court may not proceed to request a member state from surrendering an individual under its custody if such request would require that state to 'act inconsistently with its obligation under international agreements ...'. The effect of this subsection is that a member state may resist a request from the ICC to surrender an individual on the grounds that it is under a concurrent obligation, by virtue of a bilateral or multilateral agreement, to extradite the person to another state or jurisdiction.

The United States ('US'), which has the largest presence of military troops in different parts of the world, took full advantage of the Article 98(2) exemption to precipitate its policy of 'protecting' US citizens from the ICC.¹⁰ It has entered into at least 100 bilateral agreements with the view to avoid the Court's jurisdiction.¹¹ Almost, if not all, of those bilateral agreements contain provisions essentially precluding the signatory state from surrendering US citizens to the ICC when requested, unless such surrender is consented to by the US.¹²

The US entered into bilateral agreements with non-party states as well as with states who were party to the ICC. For non-party states, entering into such agreements with the US were within their legal prerogatives. However, such states came under criticism as such agreements were seen to undermine the jurisdiction of the Court.¹³

It is submitted, nevertheless, that the issue is not so much that those states who have engaged in bilateral agreements with the US may be faced with two requests concurrently - on the one hand, for surrender to the ICC and the other hand, for extradition from the United States. In light of the complementarity principle, the ICC is a forum of last resort. It is designed to remain inactive so long as alleged perpetrators are genuinely investigated or prosecuted by a state, not necessarily a party to the Rome Statute. The significant issue would arise in the event that the US, after having obtained an extradited US citizen from a member party, chooses to remain inactive or refuses to proceed judicially due to inability or unwillingness, as defined under the Rome Statute. In that case, the ICC will not be able to request the US to surrender the same as it would not have the legal authority to compel a non-party state to do so.

Conclusion

The Court's jurisdiction is not only limited to international crimes but to the most egregious international crimes of 'concern to the international community as a whole'.¹⁴ With the principle of complementarity upon which the ICC is founded, the Court is to remain dormant unless a domestic court is found inactive, unable or unwilling. Absent exceptional circumstances, the ICC superseding a state parties' authority, where its domestic legal system is more or less functioning, would appear to be unlikely. Not to mention, the Court overriding a non-state party's jurisdiction through a UNSC referral would seem to be even more uncommon.

Nevertheless, an inactive ICC can be interpreted in different ways. One interpretation is that the ICC cannot compel its member states to cooperate with it. Another is that crimes under the Court's jurisdiction mainly occurr in the territories of non-party states where the Court has no authority and to which the UNSC has not mustered enough political will to make a referral. Alternatively, it could be interpreted that states, both states who are parties to the Rome Statute and non-party states, are actively investigating and prosecuting perpetrators of international crimes. However, based on available evidence, one could argue that the latter seems too optimistic a reading.

David Gates¹⁵
Salem Ibrahim and Partners
E-mail: david.gates@hotmail.co.uk

Notes

1 Article 5(2) of the Rome Statute states that the crime of aggression is still subject to adoption of a provision, 'defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime'.

2 See William Schabas, An Introduction to the International Criminal Court (Cambridge University Press, 2001), at p. 20.

3 Article 12(3), Rome Statute

4 Article 17, ibid.

5 For further discussion on the principle of complementarity, see John Holmes, 'The Principle of Complementarity' in Lee (ed.), THE INTERNATIONAL CRIMINAL COURT: THE MAKING OF THE ROME STATUTE, ISSUES, NEGOTIATION, RESULTS (Kluwer Law International, 1999), at p. 47-53. See also The Office of the Prosecutor, Informal Expert Paper: the Principle of Complementarity in Practice [2003], available at <www.icc-cpi.int>.

6 By Resolution 1593 (2005).

7 See Article 53 of the Rome Statute.

8 See Report of the International Commission of Inquiry on Darfur (2005), available at <www.un.org/news/dh/sudan/com_inq_darfur.pdf>.

9 Article 88, op. cit.

10 See 'The Political-Military Bureau at the State Department leads the United States' worldwide campaign to secure bilateral non-surrender ("Article 98") agreements protecting American citizens from the International Criminal Court ("ICC")...', authored by the U.S. Department of State and available at <www.state.gov/t/pm/art98>.

11 See US Department of State, 'U.S. Signs 100th Article 98 Agreement' (3 May 2005), available at <www.state.gov/r/pa/prs/ps/2005/45573.htm>.

12 For a detailed discussion on this subject, see Attila Bogdan, The United States and the International Criminal Court: Avoiding Jurisdiction Through Bilateral Agreements in Reliance on Article 98, [2008] 8 Int'l Crim. L. R. 1.

13 Ibid. at p. 41.

14 Preamble of the Rome Statute

15 M. Jur, Durham University and member of the New York Bar